The Cancellation of the Romanian Presidential Elections in 2024: Judgment No. 32 of the Constitutional Court of Romania

On December 6, 2024, the Constitutional Court of Romania (CCR) cancelled the first round of the Romanian presidential elections through its Judgment No. 32. The Court justified the cancellation with declassified reports from Romania’s intelligence services, alleging voter manipulation, the distortion of equal opportunities for electoral competitors, and campaign financing from undeclared sources. Various parties raised concerns regarding the legality of the procedure. Consequently, the President of the Parliamentary Assembly of the Council of Europe requested an urgent report ¹ from the Venice Commission on the cancellation of elections by constitutional courts. Against this background, the main questions this post seeks to analyse are the following: in light of the law of the European Convention on Human Rights concretised in the Venice Commission’s opinion, was the decision of the CCR to cancel the presidential elections impartial, based on a clear and precise legal framework, and sufficiently reasoned?

This article seeks to analyse the issue of the Romanian presidential elections based on Romanian national law, supplemented by the rights and principles contained in the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR). Even though the ECtHR settled this issue in the case of Călin Georgescu v. Romania, where it held that the application was inadmissible ratione materiae (§§ 21-26), general principles, including legality and proportionality, as interpreted by the ECtHR, can still apply to elections in general and are crucial for the interpretation of national laws of the member states of the Council of Europe (CoE). Under the ECHR, the cancellation of elections interferes with the right to free elections guaranteed under Article 3 of Protocol No. 1 (P1-3, see guide). Interference in elections is not automatically unlawful, as this right is not absolute and can be subject to restrictions. The Venice Commission Report, relying on the test in Mugemangango v. Belgium, prescribes that the interference with elections is lawful if it is, inter alia, accompanied by adequate and sufficient safeguards: (a) minimum guarantees of impartiality of the decision-making body, (b) a clear and precise legal framework, and (c) a sufficiently reasoned decision.

a) Guarantees of impartiality

Impartiality is defined as the absence of prejudice or bias and can be assessed in various ways (Micallef v. Malta [GC], §93). In the context of P1-3, the decision-making body is the one responsible for providing sufficient guarantees of its impartiality (Podkolzina v. Latvia, § 35). The ECtHR previously investigated sufficient guarantees by examining states’ domestic laws (Mugemangago § 98; Guðmundur Gunnarsson and Magnús Davíð Norðdahl v. Iceland, § 82). The Constitution of Romania contains the guarantees of impartiality of the CCR and its judges. The Court is independent of any public authority, subject only to the Constitution and its organic law. It also has its own budget, which is an integral part of the state budget.² Moving on to judges, they are appointed for a term of nine years, which cannot be prolonged or renewed (Article 142(2)). Three judges are appointed by the Chamber of Deputies, three by the Senate, and three by the President of Romania. A third of the judges on the bench are additionally replaced every three years, ensuring a reasonable balance in the composition of the Court. Most critically, judges are prohibited from taking roles in public or private office, except for teaching positions (Article 145), thereby safeguarding them from undue influences arising from activities outside their tenure. Lastly, judges can be removed from office only by a Ruling of the Plenary of the Constitutional Court. ³ Consequently, impartiality is guaranteed in the Constitution of Romania.

b) Legal framework concerning the cancellation of elections

The applicable rules to cancel elections must be sufficiently certain and precise (Ždanoka v. Latvia, § 108). The decision to cancel elections should be reviewable by the highest judicial bodies, such as the Constitutional Court. Although it should be noted that there is discretion enjoyed by the body making the decisions, this cannot be excessive (Mugemangango, § 109). 

Judgment No. 32 asserts that the power to cancel elections was based solely on Article 146(f) of the Constitution. Article 146(f) entrusts the Constitutional Court with exclusive competence to guard the observance of the procedure for the election of the President of Romania and to confirm the ballot returns. This was considered highly controversial, given that there are express provisions in Romanian law governing the procedure for cancelling elections, which the Constitutional Court did not mention, such as Article 52 of Law 370/2004. 

Article 52 of Law 370/2004 sets out that elections can be cancelled where the voting and results “occurred through fraud and took place in such a way as to modify the allotment of the mandate, or as applicable, the order of the candidates participating in the runoff.” In its previous ruling No. 30 of 2 December 2024, the CCR, referring to Article 52 of Law 370/2004, and following the recount it had ordered, found that there was no evidence of fraud (para. 28). Although the term “fraud” is not defined in the Law 370/2004, the definition can be derived from the Criminal Code (Law 286/2009). ⁴ The electoral process was compromised by a coordinated attack from external actors through the dissemination of disinformation to the Romanian public on social media networks, which does not fit within the ordinary understanding of electoral fraud. Hence, Article 52 could not have applied. Even if Article 52 had been applicable, the CCR ordered sanctions which are not prescribed by Article 52(1) and (2). It did not order a repeat of the second round, and did not rely on a formal contestation to cancel elections, as it cancelled them ex officio. Consequently, since the CCR could not cancel the presidential elections under Article 52, the question is whether it could do so based on Article 146(f) alone.

Some scholars have criticised this approach as being excessively broad and without a legal basis. ⁵ The main argument is that Article 52 of Law 370/2024 is a concretisation of Article 146(f) of the Constitution, requiring a joint reading of the two provisions and thus the exhaustion of their contents. Additionally, the CCR held in 1996 in the Judgment No. 17 that it has minimal interpretation powers since the general conditions regulating presidential elections are enumerated in the Constitution and the presidential elections law. ⁶

While this holds significant weight, the CCR has since asserted that it has implied competence. Judgment No. 66 of 1 October 2019 established that the CCR has competence expressis verbis from legislation but also implied from the Constitution, which does not exclude the other (para. 22). Accordingly, the CCR has implicit competence under Article 146(f) when “the legal subjects concerned have no other remedy for correcting an alleged situation of non-compliance with Law 370/2004” (ibid). This competence covers “all electoral operations which concern the procedure of election of the President of Romania”, which the CCR defined as operations from the start of the electoral procedure ⁷ to its end (para. 23). Therefore, the election campaign is part of the mandate of the CCR. Lastly, the CCR interpreted the meaning of guarding the observance of the procedure for the election of the President in Article 146(f) broadly, not only in the sense of complying with the legal requirements prescribed in the organic law but also in accordance with the “spirit of the Constitution” (para. 31). Namely, the CCR derives competence from Article 146(f) because the Constitution is supreme to organic legislation, and in the event where a situation may arise about the unconstitutionality of the organic law which would otherwise preclude the exercise of the CCR’s powers (para. 34). 

Having established this competence, the CCR did not operationalise it in Judgment No. 66, nor in Judgment No. 32. The CCR had a duty to explain how its competence operates in a way that is foreseeable, transparent, and sufficiently reasoned. In the absence of this, it is not clear how to operationalise the findings and apply them to the case study of the 2024 presidential elections to interpret the power of the CCR to cancel elections. Without sufficient explanations, Judgment No. 32 can be seen as an arbitrary and excessive exercise of power by the CCR. This paragraph, therefore, aims to provide some recommendations regarding what the CCR could have done, or could do in the future.

1. The CCR did not clearly define what the terms “guard” or “verify” mean and whether they should be interpreted so broadly to include the cancellation of presidential elections. ⁸ Using ordinary mechanisms of interpretation, ⁹ the words guard and verify are defined as “to protect”, ¹⁰ and, respectively, “to check that something is true or accurate”. ¹¹ Guarding the observance of the elections would entail checking the electoral operation for irregularities, and if such irregularities are found, the protection of the voters and candidates in the form of cancellation; this would guarantee effective protection. ¹² Furthermore, the Venice Commission confirmed that a general control over the functions of elections can be interpreted as carrying the function to cancel elections. ¹³
   
   
2. The CCR did not explain its implicit competence further, namely, who qualifies as a legal subject and what is understood by no remedy for correcting a situation of non-compliance. Applying it to the facts, the CCR should have explained how the rights of the voters to receive information were interfered with by external actors. Additionally, it should have shown how the rights of the other presidential candidates were affected and in what way the disinformation campaign put them in an “inferior position”. Finally, it should have explained in what way the “equality” and “freedom” of election were affected. In this sense, after demonstrating that voters’ rights had been infringed and that no remedy was possible under the organic law, the CCR could have derived its jurisdiction in this way.

c) A sufficiently reasoned decision

A sufficiently reasoned decision could be taken to mean a decision in which the Court must demonstrate that the interference with human rights is proportional (Mironescu v. Romania) and must provide an adequate assessment of evidence (Abil v. Azerbaijan no.2). The CCR references four reports from the intelligence services to conclude that the voters’ choices and right to form opinions had been undermined (para. 14), and the candidates’ equal chances were distorted through aggressive and non-transparent use of digital technology and artificial intelligence (para. 16). However, the Court did not point to which evidence serves as the basis for these conclusions, nor is there any actual assessment of the evidence. The Court referenced provisions from Romanian domestic law and general principles related to democracy, electoral dysfunction, and disinformation, but did not apply these to the observations presented by the intelligence services. Moreover, as mentioned previously, the CCR did not give explanations as to why it based its Judgment solely on Article 146(f) and did not consider Article 52. There is also an absence of a test of proportionality, taking into account the notions of legitimate aim, necessity, and proportionality, which could have been used to justify and explain the legal framework for the cancellation of elections and the evidence. Considering these findings, it is difficult to argue that the criterion of a sufficiently reasoned decision is satisfied here.

Conclusion

The 2024 presidential elections highlighted the complexities of disinformation and foreign interference in the management of free elections. This episode revealed that Romania’s legal framework was not equipped to tackle such issues, requiring the CCR to take a reactive role. Even though it provided sufficient guarantees of its impartiality, the CCR did not explain how it derived its implied powers under Article 146(f) of the Constitution, nor give sufficient reasons behind the cancellation of elections. For this reason, this blog post provided recommendations to the CCR moving forward as it is difficult to argue that it adhered to the standards set by the Venice Commission Report.

1. CDL-PI (2005)001, 27 January 2025, hereafter: Venice Commission Report.
2. Article 75 of Law No. 47/1992 on the organisation and functioning of the Constitutional Court.
3. Articles 65 and 66 of Law No. 47/1992.
4. Article 387 defines “voter fraud” as the act of a person who votes, (a) without having this right, (b) two or more times, (c) by placing more ballots in the ballot box than a voter is entitled to (…).
5. Iancu, B., Militant Democracy and Rule of Law in Three Paradoxes: The Annulment of the Romanian Presidential Elections, Hague Journal on the Rule of Law (2025), https://doi.org/10.1007/s40803-025-00245-8 (hereafter: Iancu B.); Kuti, C., On Means and Ends: The Annulment of the Romanian Presidential Elections, VerfassungsBlog (2024), 10.59704/c9c08659ed569160; Carozzini, A., Shooting Democracy in the Foot?: The Romanian Constitutional Court’s Annulment of Presidential Elections, VerfassungsBlog (2024), 10.59704/fe29eb5ae260901f.
6. Judgment No. 17 of 16 September 1996.“Prin natura lor, aceste motive exced atribuţiile Curţii Constituţionale, definite de Constituţie şi de Legea nr. 69/1992, putînd fi, eventual, apreciate numai de corpul electoral cu prilejul exprimarii votului.” See: Iancu, B., fn 41.
7. The date on which the government decision setting the election dates comes into force.
8. Judgment 66, para. 23.
9. In essence: Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331, Article 31.
10. ‘Guard’, Oxford Learner’s Dictionary, https://www.oxfordlearnersdictionaries.com/definition/english/guard_2.
11. ‘Verify’, Oxford Learner’s Dictionary, https://www.oxfordlearnersdictionaries.com/us/definition/english/verify.
12. This would be consistent with the positive obligation under the ECHR to investigate allegations of electoral interference. See: Bradshaw and Others v. the United Kingdom, no. 15653/22, § .127-129, 22 July 2025.
13. Venice Commission Report, p. 7.